PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 December 2002
         DOCKET NUMBER: AR2002080553


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Mr. Harry B. Oberg		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD); that the reason for his discharge be changed to convenience of the government; and that his reentry (RE) and separation program designator (SPD) codes be changed to more favorable codes.

3. The applicant states, in effect, that he is willing to appear before the Board to present his case. He also states that his separation document (DD Form 214) is incorrect and should be changed by: showing his rank as specialist four (SP4); adding his military occupational specialty (MOS) number and title; showing he completed 11 months and 4 days of foreign service; showing that he completed
1 year of college; and by adding all the awards and decorations he earned and/or to which he is entitled based on his military service, and particularly his service in the Republic of Vietnam (RVN).

4. The applicant’s military records show that he enlisted in the Regular Army
and entered active duty on 12 February 1970. His enlistment contract
(DD Form 4) confirms that at the time of his enlistment, he had completed 1 year of college. He enlisted for, was trained in and awarded, and served in MOS 67B (Aircraft Maintenance). The record also confirms that the highest rank he attained while serving on active duty was SP4 and that he held that rank until being reduced in connection with his discharge.

5. The record also confirms that the applicant served in the RVN and was assigned to A Troop, 3^rd Armored Squadron, 17^th Air Cavalry for 11 months between August 1970 and July 1971. His Military Personnel Records Jacket (MPRJ) contains copies of two General Orders (GO) issued by Headquarters,
1^st Aviation Brigade, RVN, in March 1971. These orders awarded the applicant the Army Commendation Medal (ARCOM), for his meritorious achievement in connection with military operations against a hostile force for the period
15 August to 15 December 1970; and the Air Medal, for his meritorious achievement while participating in aerial flight for the period 1 to 20 February 1971.

6. The applicant’s record documents no disciplinary history prior to the absent without leave (AWOL) related misconduct that ultimately led to his discharge. On 3 January 1972, he departed AWOL from Fort Riley, Kansas and he remained away for 738 days until being apprehended and returned to military control on
10 January 1974. A court-martial charge was preferred against him for this period of AWOL.

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7. On 19 February 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized by the Uniform Code of Military Justice (UCMJ), and of the possible effects of an undesirable discharge (UD). Subsequent to this counseling, the applicant voluntarily submitted a request for discharge for the good of the service, in lieu of court-martial.

8. On 7 March 1974, the separation authority approved the applicant’s request for discharge and directed that he receive an UD and that he be reduced to the lowest enlisted grade. On 26 March 1974, he was discharged accordingly after completing a total of 2 years and 27 days of creditable active military service and having accrued 738 days of time lost due to AWOL.

9. The DD Form 214 issued to the applicant at the time confirmed that he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of court-martial, and accordingly was assigned an SPD code of 246. Item 6a&b (Rank and Pay Grade) listed his rank and pay grade as private/E-1 (PV1).

10. The separation document was prepared based on temporary records and as a result it did not credit the applicant for his 11 months of service in the RVN in Item 18F (Foreign Service) and in Item 16a (Primary Specialty Number and Title), it listed his MOS as 09B (Trainee). In addition, Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) listed only the National Defense Service Medal.

11. On 8 June 1978, acting on a request from the applicant, the Army Discharge Review Board (ADRB) upgraded the applicant’s UD to a GD in the interest of equity, based on his overall record of service, which included combat service in the RVN. However, the ADRB did not change the authority or reason for his discharge.

12. The DD Form 214 issued to the applicant subsequent to the ADRB action changed the applicant’s characterization of service to under honorable conditions and showed that he received a GD. It also changed the assigned SPD code from 246 to KFS. This SPD code change was not based on any change to the authority or reason for the applicant’s discharge, but was rather based solely on an Army conversion of all SPD codes. No other changes were made to the separation document as a result of this the upgrade action taken by the ADRB.

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13. Army Regulation 600-200, in effect at the time, prescribed the Army’s enlisted management policies and procedures. Chapter 7 contained guidance on promotions and reductions. It mandated, in pertinent part, that upon the determination that an individual would be discharged with a UD, that individual would be reduced to the lowest enlisted grade.

14. Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Based on the guidance in this regulation, the SPD code of KFS is the appropriate code to assign soldiers separating under the provisions of chapter 10, Army Regulation Army Regulation 635-200, for the good of the service, in lieu of court-martial. Additionally, the SPD/RE Code Cross Reference Table establishes RE-4 as the proper reentry code to assign to soldiers separated under this authority and for this reason.

15. Army Regulation 600-8-22 prescribes the Army’s awards policy. Paragraph 2-13 contains guidance on award of the Vietnam Service Medal. It states, in pertinent part, that it is authorized to individuals who served in the RVN after 3 July 1965 through 28 March 1973. It also stipulates that a bronze service star is authorized with this award for each campaign a member was credited with while serving in the RVN. Table B-1 contains a list of campaigns and it confirms that during the applicant’s tenure in the RVN, campaign credit was granted for the Vietnam Counteroffensive, Phase VII, campaign for the period 1 July 1970 through 30 June 1971.

16. Paragraph 9-19 contains guidance on awarding the Republic of Vietnam Campaign Medal. It states that it was awarded with 60 Device to members of the United States Armed Forces who served in the RVN for 6 months between
1 March 1961 and 28 March 1973.

17. Department of the Army Pamphlet 672-3 contains guidance on establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict. It confirms that during his tenure in the RVN, the applicant’s unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

CONCLUSIONS:

1. The Board notes the applicant’s request of an upgrade to his discharge and carefully considered his contentions. However, it finds the factors raised by the applicant are not sufficiently mitigating to warrant upgrading his discharge to an HD.

2. The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and after consulting with defense counsel, he voluntarily requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3. The Board also concludes that the applicant’s discharge was accomplished in accordance with applicable regulations in effect at the time, which includes the SPD and RE code assignments. Further, it notes that the characterization of service for this type of discharge is normally under other than honorable conditions, and at the time of the applicant’s discharge, the regulation authorized the issue of an UD for members separating under this provision of the regulation.

4. The Board also notes and concurs with the action of the ADRB to upgrade the applicant’s discharge in the interest of equity based on his overall record of service, which included his combat service in the RVN. It also agrees with the ADRB decision not to change the authority and reason for the discharge. Given these determinations, the Board concludes that it would be appropriate to restore the applicant’s rank to SP4, based on the ADRB upgrade of his discharge because he was reduced based on receiving an UD. However, the properly assigned SPD and RE codes were and are still appropriate based on the authority and reason for the applicant’s discharge. Thus, the Board concludes a change to either of these codes is not warranted at this time.

5. The evidence of record also confirms that the applicant had completed 1 year of college at the time he entered active duty, and that he was trained in, awarded, and served in MOS 67B. It also shows that he served in the RVN for 11 months between August 1970 and July 1971, was awarded the ARCOM and Air Medal during this tour, and further this service in the RVN entitles him to the Vietnam Service Medal with 1 bronze service star, the RVN Campaign Medal with 60 Device, and the RVN Gallantry Cross with Palm Unit Citation. Therefore, the Board concludes that it would be appropriate to correct the applicant’s separation document to include these changes.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by

a. restoring the rank and pay grade of the individual concerned to specialist four/E-4;

b. correcting the following items of his DD Form 214 as indicated: Item 6a (Grade Rate or Rank)-SP4; Item 6b (Pay Grade)-E-4; Item 16a (Primary Specialty Number and Title)-67B20 (Aircraft Maintenance); Item 18f-0 years,
11 months, 0 days; Item 20 (Highest Education Level Successfully Completed)- secondary school 12 years, college 1 year; Item 26 (Awards and Decorations)-National Defense Service Medal, Army Commendation Medal, Air Medal, Vietnam Service Medal with 1 bronze service star, Republic of Vietnam Campaign Medal with 60 Device, and Republic of Vietnam Gallantry Cross with Palm Unit Citation; and Item 27 (Remarks)-“RVN Service-Aug 70-Jul 71”; and

         c. issuing him a corrected separation document that reflects these changes.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__RJO__ __ SK___ __HBO__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Raymond V. O’Connor, Jr.__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002080553
SUFFIX
RECON
DATE BOARDED	2002/12/19
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1974/03/26
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2. 191	110.0200
3. 46	107.0000
4. 1021	100.0000
5.
6.